SHANKAR DAYAL Vs. STATE

JUDGEMENT

(1.) THE facts giving rise to this reference are that the Police submitted a charge -sheet against Shanker Dayal and Dwarka Prasad in the Court of Additional District Magistrate, Guna, under Sections 353 and 448 of the Indian Penal Code, alleging that on 14 -2 -1957, the two accused went to a school situated in Guna Chhaoni and made an attempt to assault Shri Satya Dev, one of the teachers of the school. On 4.5 -1957, the trial Court framed charges against the accused under sections 352 and 447 I.P. Code. On the charges being thus framed, the Police moved the trial Court, praying that the teacher was a public servant within the meaning of the Supreme Court decision (A.I.R. 1957 Cri LJ 1), the appropriate section under which a charge should have been framed against the accused was section 353 and not section 352 I. P. Code, The trial Court thereupon altered the charge from Sections 352 to one under Section 353 I. P. Code. Against the alteration of the charge, a revision was filed by the accused before the learned Sessions Judge, Guna, who has referred the matter to the High Court, recommending that the order of the trial Court, altering the charge should be quashed.

(2.) THE learned Sessions Judge is of the opinion that if a Magistrate frames a charge other than the one mentioned in the charge -sheet, then the Magistrate has impliedly discharged the accused of the offence mentioned in the charge -sheet and that later on the Magistrate cannot alter the charge to one mentioned in the charge sheet. Such an implied order of discharge can be set aside only under Section 436 of the Criminal Procedure Code by a Higher Court. He relies upon two authorities, A.I.R. 1936 Nag 78 and A.I.R. 1949 Mad 430 for the view he has taken,

(3.) SIMILARLY in the Nagpur case referred to above, the accused was challaned under Section 325 I.P.C. The trial Court held that the prosecution had not made out a case under section 325 and so the Magistrate charged the accused under Section 323 I.P.C. only. The Additional Sessions Judge on revision, set aside the order of the discharge under section 325 I.P.C. and sent the case back for further enquiry under Section 436 Cr.P.C. It was held that the Sessions Judge had the power to interfere under Section 436 Cr.P.C. What is to be noticed is that in both these cases what was considered was whether the Sessions (Judge had the power to act under Section 436 Cr.P.C. or not. Nothing has been said about the powers of the Magistrate himself to alter charges under Section 27 Cr.P.C. Thus the above two cases do not furnish any useful analogy on the point.